BILL ANALYSIS
AB 2270
Page 1
( Without Reference to File )
ASSEMBLY THIRD READING
AB 2270 (Laird)
As Amended May 28, 2008
Majority vote
WATER, PARKS & WILDLIFE 9-4APPROPRIATIONS 12-4
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|Ayes:|Wolk, Caballero, Eng, |Ayes:|Leno, Caballero, Davis, |
| |Furutani, Huffman, Lieu, | |DeSaulnier, Eng, Huffman, |
| |Mullin, Parra, Salas | |Berg, Krekorian, Lieu, |
| | | |Ma, Nava, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Maze, Anderson, |Nays:|Walters, La Malfa, |
| |Berryhill, La Malfa | |Nakanishi, |
| | | |Sharon Runner |
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WATER, PARKS & WILDLIFE 9-3
--------------------------------
|Ayes:|Wolk, Berryhill, |
| |Brownley, Furutani, |
| |Huffman, Lieu, Mullin, |
| |Parra, Salas |
| | |
|-----+--------------------------|
|Nays:|Maze, Anderson, La Malfa |
| | |
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SUMMARY : Requires additional reporting on recycled water and
allows local limitations on salinity inputs. Specifically, this
bill :
1) Requires the Department of Water Resources (DWR) to
include the statewide water recycling targets in the study
of water needs, in conjunction with the California Water
Plan updates on a five-year cycle.
2) Requires urban water management plans to specify the
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quantity of recycled water available for use currently and
into the future 20 years.
3) Allows any local agency that operates a sewer system to
control residential salinity inputs, including inputs from
water softeners, after a finding by the State Water
Resources Control Board (SWRCB) or a regional water quality
control board (RWQCB), in certain proceedings, that
residential salinity control would help meet water quality
standards.
4)Specifies the types of actions that local agencies may
implement to control residential salinity inputs to sewer
systems, but preserves local agency discretion as to how to
control salinity, including:
a) Require highest efficiency, commercially available,
self-regenerating, residential water softeners;
b) Require plumbing permits before installation of water
softeners;
c) Require water softeners to be hooked up only to hot
water;
d) Require removal of previously installed residential
water softeners; and,
e) Prohibit installation of water softeners.
5)Requires local agencies to compensate owners of residential
water softeners for the reasonable value of the water
softener, if the local agency requires removal of such
softeners.
6)Imposes the same standard for judicial review of a SWRCB or
RWQCB finding allowing local control of salinity inputs as the
standard of review for the underlying water quality action.
7) Changes certain recycled water reports from a quarterly
to an annual requirement.
8) Requires submission of annual recycled water reports to
the RWQCB.
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9) Makes legislative findings regarding recycled water.
EXISTING LAW authorizes use of recycled water under certain
conditions and imposes conditions on local agency limitations on
use of water softeners.
FISCAL EFFECT : Assembly Appropriations Committee estimates DWR
costs of $75,000 every five years starting in 2009-10 to include
and update more recycled water information in the California
Water Plan; and, in the hundreds of thousands of dollars
annually starting in 2008-09, to provide grants to local
agencies that adopt salinity input ordinances. These costs may
be covered by appropriations from Proposition 84 bond proceeds.
COMMENTS : The Water Recycling Act of 1991 set a 2010 target for
California to use
one million acre-feet of recycled water. While there is no
definitive calculation of the amount of recycled water use,
recent estimates suggest 600-700,000 acre-feet of current
recycled water use. The most recent California Water Plan
estimates future recycled water use at between 900,000 and 1.4
million acre-feet, in 2030. This likely failure to meet the
2010 target has been attributed to several factors, including
inconsistent RWQCB regulation.
In response to concerns about the state's progress on recycled
water, SWRCB has developed a statewide policy, in order to
encourage greater use of recycled water. That proposed policy
includes a requirement that the RWQCBs (except Santa Ana, which
already has a salt management plan) adopt salt management plans,
as increased salt loads in the source water makes recycling more
difficult. Urban salinity discharges to the state's rivers and
streams also have received increased attention in recent years,
particularly in the burgeoning San Joaquin Valley. The Central
Valley RWQCB has reduced allowable salt discharges.
This bill would expand availability of information as to
recycled water use and allow local agencies to control one of
the most significant impediments to expanding recycled water,
residential salinity discharges to sewer systems. Requiring DWR
to include recycled water in the California Water Plan study of
water needs would allow the state to adjust the targets as new
information on the progress of recycled water use emerges.
Submission of use data to the RWQCBs would improve public access
and monitoring of recycled water use, which is limited
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currently. California would know better when it achieves its
statutory targets for recycled water use.
The authorization of local regulation of salinity inputs,
particularly water softeners, is the more controversial part of
this bill, and arises out of a long history of legislative
debate over water softeners, dating back 25 years. The Health &
Safety Code includes provisions for use of residential water
softeners and states that Californians have a "right to a water
supply that is effective and functional for domestic
requirements." The statutory connection to water softeners
appears to imply a right to use water softeners to achieve that
"effective and functional" water supply. The statute therefore
limits local agency authority to regulate softeners, requiring
the agency to make certain findings as to the necessity of such
regulation. (California Health & Safety Code 116786.) These
findings must be substantiated by an "independent study of
discharges of all sources of salinity," and the agency must
enforce limits on non-residential saline discharges before
limiting water softeners. Limits on softeners may only be
prospective, barring any requirement of removal of existing
water softeners and allowing owners of such softeners to
continue discharging salt into community sewers. Advocates of
this bill assert that these requirements are burdensome and
costly, discouraging local agencies from doing anything about
softeners' saline discharges, which can exceed a pound of salt
each day from each softener.
After the state did not meet the 2000 target of 700,000
acre-feet of recycled water use, the Legislature created a task
force to examine, among other things, state and local
regulations that limit the use of recycled water. The 2003
Recycled Water Task Force report made the following
recommendation:
Local agencies should be empowered to regulate the
discharge of residential water softeners in the same manner
as other sources of discharge into sewers. Legislation
should be proposed to amend the Health and Safety Code
Sections 116775 through 116795 to reduce the restrictions
on the local ability to impose bans on or more stringent
standards for residential water softeners.
Opponents from the water softener industry point to the long
history of legislative debate over limitations on softeners, and
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assert that local agencies have not justified the need for any
change. They argue that this bill is unnecessary because local
agencies that follow the statutory process ultimately may
regulate water softeners, noting two cities that now regulate
water softeners. Bill advocates respond that salinity discharge
standards have been increased, making it more difficult to
comply and requiring urgent action that cannot be delayed to
complete a multi-year, costly study of salinity inputs.
Some opponents suggest that this bill is "outlawing an industry
and denying citizens the right to improve the quality of their
water." These opponents do not explain that there are
alternatives to the self-regenerating water softeners that
discharge significant amount of salts into public waste water.
No one has a "right" to discharge pollutants into the public.
This bill allows local regulation of salinity inputs where the
community has a problem with salinity discharges or recycling,
but does not outlaw the water softener industry. By allowing
each agency to make the determination how to regulate salinity
inputs, this bill allows tailored responses to specific problems
facing each community, which may differ.
May 28 amendments : Recent amendments concentrate local agency
controls of residential salinity inputs on regulation of water
softeners. This emphasis shifts attention away from the salt
discharges toward the water softeners. The amendments may
discourage local sewer agencies from adopting economic
incentives or disincentives for reducing such salinity
discharges to local sewer systems. The author may consider,
here or in the Senate, adding clarifying language that would
protect local agency discretion to adopt an ordinance tailored
specifically to the local sewer system and community needs.
The bill's requirement of compensation for removal of water
softeners is not necessarily required by the United States
Constitution's Fifth Amendment requiring just compensation for
government taking of private property. The compensation
requirement in this bill would be a policy decision of the
Legislature that payment should be made to those who discharge
salt to the sewer system, regardless of whether they have a
right to such compensation. This contradicts the more common
policy of "polluter pays," in which the polluter or discharger
pays to reduce and/or clean up the discharge. Requiring local
agencies to pay compensation will discourage those agencies from
choosing this option. The author responds that local agency
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supporters of the bill have indicated that paying compensation
for removing water softeners is often cheaper than the cost of
building a reverse osmosis treatment plan to remove the salts
coming from softeners.
The compensation requirement is also ambiguous as to its
application to ordinances that bar use, but do not require
removal, of water softeners. Such a prohibition on use would
render a water softener useless and eliminate any value. While
the Constitution may not require compensation, this bill's
policy may. A court may find compliance with this proposed
statute requires compensation, or a local agency may avoid the
ambiguity and any resulting conflict or litigation by paying the
compensation.
Analysis Prepared by : Alf W. Brandt / W., P. & W. / (916)
319-2096
FN: 0005283